Appeal from judgment of Court of Common Pleas of Luzerne County, Dec. T., 1965, No. 1619, in case of John Zimnisky et al. v. William Zimnisky et al.
Neville B. Shea, with him Shea and Shea, for appellants.
Joseph F. Flanagan, Harold Rosenn, and Rosenn, Jenkins & Greenwald, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.
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Plaintiffs John and Joseph Zimnisky, appellants before this Court, brought an action to quiet title to
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certain real estate located on Harveys Lake, Lake Township, Luzerne County, Pennsylvania, in the Court of Common Pleas of Luzerne County, against the defendants, William Zimnisky and Josephine Zimnisky, his wife, and Edward Mickalus,*fn1 the life tenant of the property. An answer to the complaint containing new matter was filed by the defendants and the matter came before the Honorable Judge Frank L. Pinola on the plaintiffs' motion for judgment on the pleadings. The motion was denied by Judge Pinola who then entered judgment in favor of the defendants. Plaintiffs appealed from this judgment.
A brief statement of the undisputed facts as shown by the pleadings is as follows. On May 14, 1951, Anna Zimnisky, then a widow, and her son William Zimnisky, executed an agreement terminating a partnership under which they had operated a restaurant and cafe on land owned by her at Harveys Lake, Luzerne County. This agreement provided that upon the death of Anna Zimnisky her then Harveys Lake property was to become the property of William Zimnisky, subject, however, to a charge of $1,000 in favor of her son Joseph Zimnisky, and subject to another charge of $1,200 in favor of her son John Zimnisky, with both charges to be payable within six months after her death.*fn2 This
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agreement provided for the contingency of the sale of this property by Anna Zimnisky, in which event it was to be offered first to William Zimnisky at a price of 33- 1/3 per cent below the market price.*fn3
On January 21, 1957, Anna Zimnisky, having married Edward Mickalus, conveyed the Harveys Lake real estate to herself and her husband as tenants by the entirety. On February 26, 1958, William Zimnisky acknowledged the dissolution agreement he executed with his mother in 1951 and had it recorded in the office of the Recorder of Deeds in and for Luzerne County. On November 24, 1960, Anna Zimnisky died intestate owning the Harveys Lake property as tenant by the entirety with her husband.
Thereafter, Edward Mickalus and William Zimnisky both claimed title to this property. Zimnisky based his claim upon paragraph (3) of the aforesaid dissolution agreement and Mickalus claimed as surviving tenant by the entirety. On December 1, 1960, Mickalus and Zimnisky settled their dispute and by written instrument agreed that Mickalus was to have a life estate in the property and William Zimnisky was to receive the remainder. A deed was then executed by Mickalus to William and ...